The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits. A hearing was held on February 23, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits.

Background

The worker reported an injury to her neck and head in an incident that occurred at work on January 5, 2011. She was seen by a physician on January 6, 2011, who diagnosed her with "contusion scalp/muscle strain" and suggested that she might require one day off work.

The worker returned to work, but experienced symptoms of headache and nausea. On January 19, 2011, she was seen by another physician, who noted the worker's complaints of:

Headache + nausea for the last 2 wks. Definite retrograde amnesia. No vomiting, diploplia. Dizziness occasionally.

On January 24, 2011, at an initial physiotherapy assessment, the worker was diagnosed with a cervical strain.

The worker was seen by her family physician on January 26, 2011, at which time she was diagnosed with having post concussive syndrome, and a CT scan was requested. At a follow-up appointment on February 1, 2011, the worker's family physician indicated that she was "Still not quite back to normal from a symptom point of view," and recommended that the worker remain off work for another 14 days and be reassessed after that.

A CT scan of the brain on February 7, 2011 indicated the following:

The brain parenchyma is within normal limits in appearance. No evidence of intracranial hemorrhage is visualized. The ventricles and sulci are unremarkable.

On March 3, 2011, the worker's family physician noted that the worker was "Still having lots of headaches, more than she was," and referred the worker to a sports medicine clinic. On April 27, 2011, the worker was seen by a sports medicine specialist, who provided the following assessment:

[The worker] probably has sustained a concussion. She is slowly improving. She also probably sustained an injury to her upper cervical Z-joints consistent with a Whiplash Associated Disorder…

She will be getting some more upper cervical manual therapy in [location]. She should either work with a massage therapist, a chiropractor skilled in muscle release techniques or a physiotherapist who has manual skill techniques. Releasing the muscles I have noted above as well as upper cervical Z-joints will probably help her headache. I have encouraged her to do things like crossword puzzles to help her with her concentration. She is not fit to work in an environment where she is exposed to potential head trauma. Otherwise, she would be fit for light duties…

At a further follow-up appointment on May 9, 2011, the worker's family physician noted that the worker was still complaining of "problems concentration/forgetful. Headaches are much improved." The recommended Treatment Plan was:

Avoid activities beyond light activities. Avoid situations where a head injury in a potential risk. Review in a month approx. Sees [sports medicine specialist] in a few weeks in follow up.

On May 30, 2011, a WCB medical advisor reviewed the claim file, and indicated in response to questions from the case manager that:

• The probable diagnosis as related to the January 5, 2011 injury appeared to be concussion and whiplash neck injury. 

• The worker could work where sudden head and neck movements were avoided and she was not in a situation where a physical confrontation might occur. 

• As suggested by the sports medicine specialist, she could attend to either chiropractic treatment or to massage therapy for muscle release of the cervical musculature.

In a follow-up appointment on June 1, 2011, the sports medicine specialist noted that the key deficit which the worker was currently complaining of was short term memory, and recommended that she be referred to a neuropsychologist.

On June 17, 2011, the employer advised the WCB that the worker would be starting a temporary placement on June 20, 2011, with modified duties and reduced hours.

On June 21, 2011, the worker advised the WCB that her symptoms had returned and she was really struggling. On June 22, 2011, the worker advised the WCB that she was scheduled for neuropsychological testing on July 7, 2011, and had been provided with a note from the sports medicine specialist advising that she should remain off work until the neuropsychological testing results had been received and reviewed. On July 4, 2011, the WCB advised the employer that the worker's return to work planning was being put on hold until after the test results from the worker's July 7, 2011 appointment were reviewed.

On July 7, 2011, the worker was assessed by a neuropsychologist. In his report dated August 9, 2011, the neuropsychologist provided the results of the neurological testing. His conclusions were set out, in part, as follows:

1) Diagnosis: [The sports medicine specialist's] April 27th, 2011 report indicated, "she probably has sustained a concussion", and I would certainly agree with this, based on her results here. The evidence for this is as follows: 

a) She currently has cognitive impairments that are consistent with her description (e.g. losing items, feeling she cannot focus on 2 to 3 things at once, etc.) 

b) She had a several second period of amnesia at the time of the event at the …facility where she was injured. 

c) She reported significant headache, nausea and vomiting. 

d) Her very specific cognitive difficulties here are not explainable by other factors…

In terms of DSM-IV terminology, she would meet the criteria of a Cognitive Disorder N.O.S. This simply refers to an individual who has a "physical" or organic basis for objectively defined cognitive limitations.

2) Test Results: [The worker's] "core" difficulty is in her concentration. When she needs to visually multitask or focus on 2 events almost simultaneously, her accuracy is moderately below average. A secondary difficulty was in 2 types of visual memory.

3) Implications: I anticipate that [the worker] would be successful in activities where she is able to focus on one task or event at a time. However when she does need to multitask, visually, there is a risk that she would be less accurate with this. Or stated a different way, she is more vulnerable to being distracted by events around her, compared to other people. As a less serious difficulty, we can still expect her to have occasional forgetfulness of visual information. This is quite consistent with her report of occasionally losing items and needing to take additional efforts to ensure she remembers them…

On November 8, 2011, the worker started a gradual return to work, with modified duties. Various medical aid benefits and treatments were provided in the months that followed.

On April 9, 2013, the WCB advised the worker that it had been determined that she had recovered from the effects of her compensable injury and no further responsibility would be accepted for her claim. The worker's union representative requested reconsideration of that decision by Review Office.

On September 9, 2013, Review Office determined that the worker had suffered an injury to her head at the time of the accident and sustained a concussion. Review Office determined that the worker was entitled to further benefits as a result of her compensable head injury, and suggested a going-forward review of the worker's difficulties in relation to her head injury, during which time the worker should be entitled to benefits.

On October 30, 2013, a WCB psychological advisor assessed the worker at a call-in examination, and reported, in part:

[The worker] is a claimant who most likely had a concussive severity brain injury…

I have reviewed very clearly here that not only has the claimant sustained physical symptoms, each of the symptoms reported can be clearly exacerbated by anxiety, sleep disturbance, and adverse feelings in any circumstance and, here it is very clear that not only has the claimant…sustained a physical injury, but she has had psychological injury that has increased as she has returned to work and where she has felt unsettled, she has felt that the injury event should not have occurred, that she was very distressed over what had occurred, she had experienced her life as having changed and, she reported she was more on guard, more vigilant, she lacked trust, and she had increased anxiety regarding any escalated situation that she anticipated as she felt more vulnerable…

Hence, there are very potent psychological issues here…She was able to identify that she has experienced anxiety and depressed mood over the course of time, and in my view, what I am assessing here is that she has an Adjustment Disorder with anxiety and some degree of depressed mood, and in my view this stems directly from the compensable injury, she has been somewhat reluctant to deal with these issues, and only during the course of a two hour interview with a systematic approach to analyze the perpetuation of her symptoms and consider multiple inputs here, did she disclose to these issues. Here, this was with obvious distress and my sense here is she has not been coping with this well and it may be that she has been very focused on her standards of competent functioning, normalized functioning and, working hard to manage her anxiety with this inevitably fatiguing to her and interfering with her perception of her acuity of cognitive functioning. It was noteworthy that she had a headache during the time she processed these issues and, I saw this as related to the stress of what she was dealing with.

There is no evidence I have this claimant sustained a clinically significant brain injury that would lead to longer term organic effects of her brain functioning…

The WCB psychological advisor recommended the following restrictions:

1. Her continuing in a lower acuity placement as she has described, in the [position], as she is currently, with her describing her placement with lower acuity [residents] than she had prior to the [workplace] injuries. 

2. That she have limited exposure to lengthy training or training that is heavily focused on new learning. 

3. That she stay in her current placement if this is possible.

The WCB psychological advisor further recommended that:

1. The claimant should continue with her current placement in the context of the recommendations that I have made for restrictions as indicated. 

2. The claimant should continue to see [neuropsychologist], and that this occur over eight additional sessions at this point, with the focus on anxiety management, diffusing, de-escalating, psychological symptom management, having her work on increasing her sense of mastery and resilience, and in dealing with her sense of being more on guard, being more vigilant, being less trusting and, having anxiety regarding escalated situations. 

3. The claimant stay in the position she is in and the treatment parameters the advisor had outlined be worked on very assertively to increase her coping, increase her resilience, and increase her sense of mastery. 

4. The restrictions stay in place over the next six months. The goal was to maintain her success in the workplace...

On February 26, 2014, the worker was assessed at a further call-in examination by the WCB psychological advisor, who provided the following impression:

[The worker] is a claimant who I had seen previously as of October 30, 2013, and at that time, she had an Adjustment Disorder with Anxiety and some degree of Depression, and at this time, her symptoms have resolved to the point where she has no current claim related mental health diagnosis and, hence, the restrictions that have been in place previously that were temporary can now be removed. She had no psychological domain restriction.

The WCB psychological advisor recommended that:

1. The worker's restrictions as previously outlined be removed. 

2. The worker have the ability to continue to see [neuropsychologist] four to six times if required over the balance of the calendar year to solidify her psychological gains and to problem solve any issue that may arise associated with her claim.

On February 27, 2014, the case manager emailed the worker and the employer to advise that the worker had been cleared for full regular duties unrestricted and her claim was now closed.

On May 6, 2014, the WCB wrote to the attending neuropsychologist for a report. The neuropsychologist responded on the same day, and advised the WCB that the worker was experiencing symptoms of what the worker considered a regression in the psychological gains she had previously made. On June 12, 2014, the worker contacted the WCB and reported that she was experiencing difficulties related to her claim.

On July 8, 2014, the WCB advised the worker that following a review of all of the information on her file, it had been determined that her current difficulties were not a direct result of the workplace incident of January 5, 2011, and time loss incurred and any restrictions were not compensable. On December 9, 2014 and January 21, 2015, following requests for reconsideration, the WCB advised that there was no change to the July 8, 2014 decision.

On April 20, 2016, the worker contacted the WCB indicating that she was experiencing difficulties because of a recent event at work and time loss, which she related to her January 5, 2011 workplace injury. On June 23, 2016, the worker was advised that following a review of the file and consultation with a WCB medical consultant, it was determined that there was no entitlement to benefits or services.

By letter dated November 23, 2016, the worker's union representative provided the WCB with new medical evidence, including a report from a psychiatrist dated October 18, 2016. The new medical evidence was reviewed, along with the worker's file, by a WCB psychiatric consultant, who opined on December 19, 2016:

[The worker] underwent several neuropsychological tests between 2011 and 2014 and during that time, her cognitive function improved as documented by repeated testing by [neuropsychologist]. Between July 29, 2014, and April 18, 2016, [the worker] did not seek further treatment with [neuropsychologist]. [The worker] attended her family physician on several occasions. Difficulties in memory were not noted in the family physician's progress notes. It was noted on January 6, 2015, and December 11, 2015, that work was going well and that [the worker] was managing well.

It would be unusual for someone who experienced a head injury and cognitive deficits and who showed definitive improvements such that they were able to return to the workplace, to then present two years later with memory deficits that could be medically related to the head injury.

The writer concludes that the memory deficits which [the worker] has described to her family physician and to [psychiatrist] cannot be medically accounted for by the compensable injury of January 5, 2011.

By letter dated December 19, 2016 (should read January 19, 2017), the worker was advised that the WCB's decision to disallow entitlement to further benefits remained unchanged.

On February 3, 2017, the worker's union representative requested reconsideration of the WCB's decision by Review Office. On April 18, 2017, Review Office determined that the worker was not entitled to further benefits. Review Office noted that the worker's point-in-time problems (beginning April/May 2014) were precipitated by factors which were not considered to be directly related to the injury, including a family member's health problem and an interpersonal problem that resulted in an altercation in the workplace. While acknowledging that there was little evidence on the current file to support that the worker had prior non-physical problems, Review Office noted that evidence on a prior claim file suggested there may have been prior untreated/unrecognized difficulties similar to the symptoms the worker was currently relating to the compensable head injury.

Review Office stated that having considered all of the available evidence, it was unable to conclude that the worker sustained a long-term organic brain injury. Review Office noted that this determination was consistent with the December 19, 2016 review and opinion of the WCB's psychiatric consultant that it would be unusual for someone who experienced a head injury and cognitive deficits to recover to the extent the worker demonstrated, only to have problems two years later.

On July 4, 2017, the worker's union representative appealed Review Office's April 18, 2017 decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

The worker was represented by a union representative who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker was accompanied by a family member at the hearing and responded to questions from her union representative and the panel.

The worker's position was that she is entitled to further benefits because her ongoing cognitive impairment and psychological difficulties are directly attributable to the compensable injury she sustained as a result of her January 5, 2011 workplace incident.

It was submitted that the evidence on file, particularly the progress reports from the worker's family physician, confirms that the worker struggled with impaired memory and concentration immediately after her accident. The WCB accepted that these and other symptoms were due to a head injury, for which it accepted responsibility. The WCB also accepted responsibility for the worker's post-concussion syndrome which, it was submitted, was a valid and compensable diagnosis.

The WCB later accepted responsibility for a psychological condition which was identified in 2013, nearly three years after the accident. The WCB's psychological advisor diagnosed the worker with adjustment disorder, with anxiety and depressed mood, which developed as a consequence of the workplace accident and resultant injuries.

The worker's representative submitted that in concluding that the worker had recovered from the effects of her accident, the WCB relied too heavily on the worker's reports. The worker's efforts to improve and her focus on recovery should not invalidate the reality that she continued to struggle with issues in the workplace, relying on others to assist her, and using lists and routines to prompt her to make sure the job got done. It was submitted that although her improvement was also supported by the treating neuropsychologist, the evidence does not support that this improvement was sustained or that she recovered.

It was submitted that the evidence shows that the worker was able to return to various positions between 2012 and 2016, but none of those positions had the physical, psychological or cognitive demands of her pre-accident work. They were all low intensity jobs, which allowed her to work around the problems without serious issues. The worker's representative pointed to statements from a former co-worker and the worker's daughter which illustrated the difference in her behaviour and abilities from before and after the accident, and countered the worker's comments to the WCB that she was improving.

The worker's representative submitted that following the identification of her psychological condition in 2013 and treatment into 2014, the worker experienced the most significant progress in her recovery. Her restrictions were removed in February 2014, but weeks later she encountered a number of stressors, most notably, a comment by her supervisor that she was a "weird bird" with problems. It was submitted that while the worker had felt she was improving, this comment suggested that in the eyes of others, she was not.

It was submitted that the worker's time loss in 2014 was due to an exacerbation of her compensable psychological condition, where she was once again struggling with the persistence of her injury. The treating neuropsychologist reported to the WCB that the worker had a reduced ability to cope with stress as a result of her injury, and that was what took her off work at that time.

The worker's representative noted that the worker managed to return to work after a few months, but again to a lesser demanding role which she was able to do. She managed up until April 2016, when she was faced with having to learn a new position. It was submitted that the memory issues which came to light in April 2016 were not new, but were a persistent problem, the severity of which would wax and wane depending on the situation and the presence of external stressors. While trying to learn this new position, it became apparent to her and her employer that her ongoing symptoms prevented her from effectively performing in the workplace.

Reference was also made to a May 5, 2017 opinion by a psychiatrist which had been submitted in advance of the appeal. The representative noted that the psychiatrist, following an independent medical assessment of the worker, concluded that she was still suffering from post-concussive syndrome which was caused by her workplace accident, as well as a depression secondary to the ongoing post-concussive syndrome symptoms, and the impact this had on her home life and career. It was submitted that this opinion supported that the worker had improved, but never recovered from the effects of her compensable injuries.

In conclusion, it was submitted that the worker's ongoing difficulties, both in 2014 and from 2016 onward, were a direct result of her compensable injury, and she was therefore entitled to further wage loss and medical aid benefits.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that they agreed with the Review Office and Compensation Services decisions, and the worker is not entitled to any additional benefits as a result of her compensable injury.

It was submitted that the worker experienced problems with sleep, headaches, and memory issues following the accident, and her symptoms seemed to wax and wane over the course of the claim, depending on the level of stress she was experiencing.

The employer's representative referred to a number of the medical reports on file. He noted that the August 9, 2011 report by the neuropsychologist of his initial assessment of the worker indicated that he conducted a battery of tests of all major neurological functions, including issues relating to attention, concentration, memory, intellect and spatial functioning. It was submitted, in summary, that the neuropsychological testing showed that the worker's core impairment was in one type of visual concentration relating to multi-tasking.

It was noted that in January 2012, the neuropsychologist prescribed cognitive exercises, and by April 2012, he was reporting that the worker's reaction times were improving which was what was expected with those exercises. In September 2012, the neuropsychologist assessed the worker again and said there was really nothing more he could do from a psychological perspective and was putting the worker "on hold."

It was submitted that not much more appeared to happen at that point, although the worker saw her family doctor periodically. Then, at the request of the worker's union, the treating neuropsychologist submitted a report on October 4, 2013, which was reviewed by the WCB psychological advisor and a call-in examination was arranged. The WCB psychological advisor then prepared an extensive report. It was noted that while the Review Office had ultimately concluded that they were dealing with a concussion, the WCB psychological advisor said that he did not believe she sustained a clinically significant brain injury that would lead to longer-term injury. The psychological advisor noted that the medical reports indicated that the worker's psychological functioning had normalized and said that she likely had an adjustment disorder. Things therefore appeared to have normalized from a cognitive and memory perspective, and the issues appeared to be more in the nature of an adjustment disorder with some degree of depressed mood, for which additional treatment needed to be considered.

The neuropsychologist began treating the worker on that basis, and by December 2013 or January 2014 was reporting improvements in the worker's headaches, stamina and emotional ability. At a further assessment by the WCB psychological advisor on February 26, 2014, it was noted that the worker herself felt that she did not need restrictions and that the reason for him seeing her was to have the restrictions lifted. In the employer's view, it was important to note that the attending neuropsychologist, the worker and the WCB psychological advisor were all in agreement with this.

The employer's representative noted that it was not until mid-April 2014 that the worker indicated she had experienced an increase in her symptoms again. Information provided indicated that the worker was dealing with an issue regarding a family member with a serious medical problem, and within three days of that she had a blow-up with a co-worker at work. In the employer's view, there was no causal link to anything related to the traumatic brain injury at that point. The WCB psychological advisor reviewed the matter and noted that the treating neuropsychologist's position was that the claimant had a reduction in her coping capacity secondary to the compensable injury. The WCB therefore denied responsibility on the basis that the symptoms were related to the activities in the workplace and personal issues, and not to the compensable injury.

The employer's representative submitted that the next indication that the worker was having significant memory issues was in April 2016, and seemed to coincide with a change in duty to a different role. There was a complaint, and when management asked about this, the worker suggested she could not remember what she had done. The worker's family doctor assessed at that time that the worker had acute stressors relating to the workplace issues, and memory impairment that he thought her previous concussion had influenced. That information was reviewed by the WCB medical advisor who noted that there was no continuity of complaints in the worker's chart notes for memory loss. It was submitted that while memory loss issues were being raised, there was nothing between 2014 and 2016 that really indicated there were memory loss issues all along. Assuming there was a concussion, the natural history would be improvement over time, and it was not consistent with the natural history for the symptoms to get worse.

In summary, in the employer's view, the medical evidence supports that any memory, cognitive or other deficits that may have been apparent at the outset of the claim were no longer related or relevant to the claim in terms of whether the worker was or is entitled to further benefits, and the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of her January 5, 2011 compensable injury. For the reasons that follow, the panel is able to make that finding.

Information on file and at the hearing indicated that while the worker was being accommodated in her return to work, the accommodations were not always appropriate and the required cognitive and memory skills were nowhere near the level of her pre-accident position.

The worker had been acting in a supervisory capacity at the time of her accident, which was three levels higher than the basic level one position. When asked at the hearing if she had ever gone back to her regular job, the worker responded:

Never, not even close. I couldn't even do anything. I couldn't even pass being a [level one] worker, not even being able to do 15% of what was required. How was I supposed to be a supervisor again when I can't even do stuff on the floor?

The employer's representative acknowledged that even when the worker had no restrictions in February 2014, she had not been put back into her pre-accident position, and he could not say why that had not occurred. In response to a question as to whether she had asked the employer when she was going to get back to her regular duties, the worker said that if she could not function at the basic bottom level, she could not expect to go to a higher level. In the panel's view, it appears that there was a tacit understanding at the workplace that the worker had ongoing limitations that were simply and quietly accommodated by the employer. This is also corroborated by the following findings.

The panel notes that no assessment appears to have been done with respect to the worker's actual functioning in the workplace.

The panel places weight on the October 4, 2013 report of the treating neuropsychologist who suggested that such an assessment would be helpful, stating:

I believe [the worker] does continue to experience some residual post-concussive symptoms. I do see several patients a year where their cognitive test result normalize…, yet they can persist with other post-concussive symptoms. [The worker] has had treatment with [pain management physician] for headaches, and brief cognitive exercises here for concentration, yet these haven't completely resolved either of these issues….

In my last report to the WCB of September 24, 2012, I recommended that she attempt to remain in the same unit in her…facility for at least a few weeks, rather that switch from one unit to the other, to help with her adaptation….

In terms other (sic) restrictions, I do not have "objective" cognitive test results to base these on since her scores normalized here, a year and a half ago. However clearly [the worker] has continued to have symptoms, so we do need to take these seriously. I believe the best way to help understand her situation would be to have information on her functioning right in her unit. This typically involves an occupational therapist whose role is to conduct workplace assessments, and often to then implement suggestions to help address workplace difficulties…

With respect to benefits starting in 2016, the evidence shows that the worker had worked at the same job from August 2014 to April 2016. The worker described the job as involving probably less than 15% of what was required for a basic level one position. The worker indicated that she managed by working off a list, and would use check marks and a highlighter to keep track of things. She indicated that when she would forget what she was doing, her co-workers would help: "we worked as a team to help me." The worker referred to a letter which a co-worker had written to the others asking that they help the worker as the co-worker had felt unsafe a lot lately. While the worker worked in that position for a year and a half, she stated "…but I had been struggling all along, telling myself it's going to get better, it's going to get better. I couldn't function at home." When it was put to her that she hadn't been missing time at work, she said that "Yes, I was...And I also booked all my vacation leave appropriately for rest times."

Information on file shows that the worker was re-assigned to a new position in April 2016, and began a two week training period on April 4, 2016. The worker's evidence at the hearing was that she was supposed to be doing paperwork in the new job, and inputting data on a computer using a different system. She said that 85% of what she was doing in that position was different, and she was not familiar with it. She described the most challenging part as being that there were too many things, she could not get organized and could not work like that. She said that an issue had come up involving a complaint, and when asked about it, she indicated that she could not remember names and had told them that. One hour later she was told she was going to another unit. The worker said that she knew there was no way she would be able to work in that other position, as she would be a security risk, and she went home crying.

Based on the evidence before us, the panel further finds, on a balance of probabilities, that neither the new position to which the worker was assigned in April 2016 nor the position which was told she would be going to after that were appropriate, given her ongoing symptoms and limitations.

Based on our review of the evidence, the panel notes that the worker's treating medical practitioners were repeatedly suggesting that the worker needed duties which were predictable, repetitive, planned and simply focused.

The panel finds that long-term restrictions in the nature of what had been suggested by the treating medical practitioners were required and should have been implemented.

The panel further finds, on a balance of probabilities, that the worker's post-concussion symptoms had not resolved by April 2016.

In concluding that the worker's symptoms and compensable injury had not resolved, the panel places weight on the opinion of the treating neuropsychologist that there was nothing to suggest that the worker was malingering.

The panel also places weight on the letters from the former co-worker and the worker's daughter which were provided in advance of the hearing, which describe the worker's abilities and condition before and after the accident, and finds that those letters support that the worker continued to suffer from the effects of her concussion, and that long-term restrictions were needed.

Based on the foregoing, the panel finds that the worker sustained a further loss of earning capacity and required further medical aid starting in April 2016 as a result of her January 5, 2011 compensable injury, and is therefore entitled to further benefits.

With respect to 2014, the panel has already found that the worker's post-concussion symptoms had not resolved by 2016, and therefore they had not resolved by 2014 either.

Based on our review of the information on file and as presented at the hearing, the panel is further satisfied, on a balance of probabilities, that the worker's psychological conditions had not resolved by mid-April 2014.

The panel notes that while the four to six visits with the treating neuropsychologist which the WCB psychological advisor had recommended in February 2014 were intended to be used over the course of the calendar year to solidify the worker's psychological gains, those sessions had not been used for that longer-term purpose, but rather for treatment within the first few months, with the sixth and final session being July 8, 2014, suggesting acute psychological issues rather than the presumed solidification of psychological gains.

The worker's evidence with respect to the duties that she was performing in 2014 was that this was a "gravy job." She noted the paperwork which was involved in that position was not even one tenth of what was required in other positions, but she still had a hard time doing it. She said that she had little sticky notes to keep track of everything she had to do in a day, and to make sure she did not forget anything. She would forget entire conversations with her manager, which the manager certainly noticed. While she was in a job which she could theoretically do, she was struggling, and there were things that she could not do in that job.

In the panel's view, the evidence indicates that the worker was doing her best to stay positive and to improve, but was very close to the edge, such that it would not have taken much to trigger her symptoms. The panel finds that in the circumstances, the comment by her supervisor that she was a "weird bird" was perceived by the worker as another indication that she was not getting better, and that everyone knew that to be the case. The panel is satisfied that in this situation, the comment was more of a claim-related issue, and resulted in the worker being off work and suffering a loss of earning capacity and a need for further medical aid benefits.

Based on the foregoing, the panel finds that the worker sustained a loss of earning capacity and a need for medical aid benefits, both in 2014 and starting in April 2016 as a result of her January 5, 2011 compensable injury, and is therefore entitled to further benefits.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of April, 2018